Robert M. Hogg and Kathryn A. Hogg

IN THE COURT OF APPEALS OF IOWA

No. 20-1175
Filed November 23, 2021

ROBERT M. HOGG and KATHRYN A. HOGG,
Plaintiffs-Appellants,

vs.

CITY COUNCIL OF CEDAR RAPIDS,
Defendant-Appellee,

and

PROTECT THE PRAIRIE PARK CORRIDOR, INC., an Iowa Nonprofit
Membership Corporation, JEREMIAH KENNY, RONALD LIPPE, MICHAEL
NOKE, LOUWANNA MORRIS, JOHN SCHRINER, and KERRY SANDERS,
Intervenors-Appellants,

and

CARGILL, INCORPORATED,
Intervenor-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Mary E. Chiccelly,

Judge.

Property owners appeal the city council’s determination to amend the future

land use map and rezone a property to allow industrial use. REVERSED AND

REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS

OPINION.

Robert M. Hogg and Kathryn A. Hogg, self-represented.
2

Elizabeth D. Jacobi of the City of Cedar Rapids City Attorney's Office, Cedar

Rapids, for appellee.

James C. Larew of Larew Law Office, Iowa City, for Intervenor-Appellants.

Samuel E. Jones of Shuttleworth & Ingersoll, P.C., Cedar Rapids, and

Shannon L. Sole of Faegre Drinker Biddle & Reath, LLP, Des Moines and

Christopher H. Dolan, Minneapolis, MN, for Intervenor-Appellee.

Heard by May, P.J., and Greer and Badding, JJ.
3

GREER, Judge.

“A man who does not plan long ahead will find trouble at his door.”1 These

neighbors2 (Landowners) near the “Stewart Road Property” 3 (the Property)

believed the land use and zoning plans of Cedar Rapids (the City) left trouble off

their doors. In their view, the City then threw the plans aside to appease Cargill,

Inc., but the district court and City resolved that the plans legally allowed for the

Cargill development. The Landowners filed writs of certiorari after the City granted

a change to the land use plan and moved forward with a rezoning of the property

to allow Cargill the opportunity to develop a railyard near the Landowners’

residential properties.

Now on appeal, Hoggs argue there are issues of first impression and issues

of broad public importance regarding: (1) land use amendments which allow an

industrial use to be built in an existing residential neighborhood on public property

currently used as a state-funded prairie, (2) the application of Iowa Flood Mitigation

Program as codified in Iowa Code chapter 418 (2019) and a state-funded

applicant’s flood control system master plan, (3) a city’s misinformation about its

1 Also translated as, “If a man is not far-sighted, then trouble is impending.”
A. Charles Muller, The Analects of Confusius, 15:12, http://www.acmuller.net/con-
dao/analects (last visited: Nov. 8, 2021).
2 Robert and Kathryn Hogg own a home in the neighborhood contiguous to the

Stewart Road property. Other neighbors, Jeremiah Kenny, Ronald Lippe, Michael
Noke, Louwanna Morris, John Schriner, and Kerry Sanders, appeared and moved
to intervene and consolidate their objections to the city plan along with a non-profit
group called Protect the Prairie Park Corridor, Inc. The single family residential
neighborhood is known locally as “Rompot.” Because all of their concerns align,
we refer to all of these parties as the “Landowners.”
3 The City has owned these approximately twenty-seven acres since 1997. The

property is located south of Otis Avenue SE and west of Cole Street SE in Cedar
Rapids.
4

own authority over neighborhood flood protection and its failure to follow its own

procedures for a city-initiated land use amendment, and (4) the requirement for a

hearing under Iowa Rule of Civil Procedure 1.1410 in certiorari cases. The

neighborhood group also raises these issues and adds that the City decision-

makers were materially misinformed by the City’s own staff about other options

available to Cargill. They assert those other options would have avoided the loss

of the nature reserve area.

I. The Legal Proceedings.

After attempts to change the course of the City, on December 16, 2019,

Hoggs petitioned for a writ of certiorari to set aside the approval of the amended

future land use map (FLUM) that allowed the Cargill project to proceed. Then on

December 20, 2019, Hoggs filed another writ of certiorari challenging the

ordinance to rezone the Property. For appellate purposes, the cases are

consolidated.

The basis of these filings related to the City’s action in allowing “an industrial

rail yard to be constructed on a 27-acre city-owned parcel in the 2008 floodplain

long used as green space and currently used as a state-funded ‘Prairie Pollinator

Zone’ in the ‘Sac and Fox Natureway.’” Once the writs were filed, Cargill

intervened in these proceedings. Also intervening in the actions were the Prairie

Park Corridor, Inc., and six landowners (collectively, “Prairie Park”) in the area.

The Landowners requested an oral hearing to address each writ. All parties filed

briefs in the district court and submitted voluminous exhibits. Without a hearing,

the district court annulled the writs of certiorari in two separate orders. The district

court found both the FLUM and the rezoning decisions were supported by
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substantial evidence and the Landowers did not overcome the strong presumption

of legality. Also, the court reasoned that the Landowners failed to prove the City

acted unreasonably, arbitrarily, or capriciously. Finally, the district court found the

reasonableness of the land use changes were fairly debatable so that the court

could not substitute its judgment over the City’s. Multiple motions to amend,

enlarge, and reconsider followed. All Landowner motions were denied without

hearing. Hoggs and Prairie Park appeal.

II. Standard of Review.

Certiorari is a procedure to test whether a lower board, tribunal, or court

exceeded its proper jurisdiction or otherwise acted illegally. State Pub. Def. v.

Iowa Dist. Ct., 886 N.W.2d 595, 598 (Iowa 2016). Our review is for errors at law.

Id. When reviewing for correction of errors at law, we are bound by “the district

court's well-supported factual findings” but not its legal conclusions. State Pub.

Def. v. Iowa Dist. Ct., 745 N.W.2d 738, 739 (Iowa 2008) (citation omitted).

“Illegality exists when the court’s findings lack substantial evidentiary support or

when the court has not properly applied the law.” Id. “Evidence is substantial

when ‘a reasonable mind would accept it as adequate to reach a conclusion.’”

Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001) (quoting Hasselman

v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999)). “If a district court’s findings of

fact leave the reasonableness of the board’s action open to a fair difference of

opinion, the court may not substitute its decision for that of the board.” Helmke v.

Bd. of Adjustment, 418 N.W.2d 346, 347 (Iowa 1988) (citation omitted).

As for the application of the rules of civil procedure, we note that “rules have

the force and effect of statutes.” Fisher v. Davis, 601 N.W.2d 54, 60 (Iowa 1999).
6

With that in mind, “we interpret rules in the same manner we interpret statutes.”

Id. Because the issue is one of interpretation, our review is for correction of errors

at law. See State v. Azneer, 526 N.W.2d 298, 299 (Iowa 1995) (reviewing statutory

construction matters for corrections of errors at law).

III. Analysis.

Because we resolve this stage of the proceedings under procedural

considerations, we do not reach the Landowners’ substantive issues at this time.

Instead, we remand for the district court to hold the hearing required under Iowa

Rule of Civil Procedure 1.1410. Here is our reasoning.

Before proceeding to the merits, the procedural concern of the Landowners

needed resolution. To review, the procedural rule controlling our approach to

resolve a petition for writ of certiorari states:

When full return has been made, the court shall fix a time and place
for hearing. In addition to the record made by the return, the court
may receive any transcript or recording of the original proceeding
and such other oral or written evidence explaining the matters
contained in the return. Unless otherwise specially provided by
statute, such transcript, recording, or additional evidence shall be
considered only to determine the legality of the proceedings or the
sufficiency of the evidence before the original tribunal, board, officer,
or magistrate.

Iowa R. Civ. P. 1.1410 (emphasis added). The Landowners say “shall” means a

hearing was required to be set by the district court on their claims against the City.

The district court declined the Landowners’ requests for a hearing on each of the

writs. Instead, the district court said, “[I]t is routine practice of the Sixth Judicial

District to rule without oral hearing when the Court has been fully briefed on the

issues presented.” But, the Iowa Rules of Civil Procedure are not aspirational,

they are the rules and they take precedence over any district’s local rules. See
7

Iowa R. Civ. P. 1.101 (“The rules in this chapter shall govern the practice and

procedure in all courts of the state, except where they expressly provide otherwise

or statutes not affected hereby provide different procedure in particular courts or

cases.”); see also Iowa R. Civ. P. 1.1806 (“Each district court, by action of a

majority of its district judges, may from time to time make and amend rules

governing its practice and administration not inconsistent with these rules.”

(emphasis added)). So it follows that if the rules governing all courts require a

hearing, a hearing shall be held in all judicial districts of Iowa. Even so, the City

and Cargill ask if the hearing was “mandatory.”

As further backdrop, the district court noted that because the issue was

“fully briefed,” a hearing was not necessary. And, the City and Cargill maintain

that the Landowners are not prejudiced by the lack of a hearing because of the

voluminous record and extensive briefing already provided to the district court,

operating in an appellate capacity. They argue a hearing would be a waste of

judicial resources. In its oral argument, Cargill also championed the idea that

because the Landowners got appellate oral argument, their opportunity for a

“hearing” was satisfied. With the limited time afforded in appellate oral argument,

we do not consider a hearing on the merits to be on equal footing with the targeted

discussions had in front of our court.

At the oral arguments, Cargill cited Wieslander v. Iowa Department of

Transportation as additional authority supporting the district court’s denial of a

hearing on the writs. 596 N.W.2d 516 (Iowa 1999). Wieslander involved an appeal

from an administrative agency, the Iowa Department of Transportation (DOT). Id.

at 519. The DOT revoked a woman’s drivers’ license after she was caught drunk
8

driving. Id. Simultaneously, she faced criminal charges. Id. In her criminal case,

the court sustained her motion to suppress evidence from the breathalyzer. Id. At

this point, she filed to reopen the revocation hearing based on the criminal finding.

Id. However, the law had recently changed and affected whether reopening the

DOT action was possible. Id. The court applied the amendment to the law

retroactively and denied her petition to reopen the DOT action. Id. Wieslander

filed a motion to appeal under then Iowa Rule of Civil Procedure 179(b) (now rule

1.904). Id. The district court determined that it neither needed to have a hearing

nor accept briefs because there was a single legal issue to consider. Id. at 520.

Noting that the district court acted out of turn in this “procedural irregularity,” the

supreme court found the error was rectified because the issues were fully

addressed on appeal and in oral argument and Wieslander made no request to

supplement the record, so she was not prejudiced. Id. But Wieslander referenced

Kernodle v. Commissioner of Insurance, 331 N.W.2d 132, 135 (Iowa 1983), which

also involved a review from an administrative agency. In Kernodle, there was no

opportunity for an oral or written submission, and the Kernodle court remanded the

case, stating:

Rule 333(b), Iowa Rules of Civil Procedure [now rule 1.1603]
provides that in proceedings for judicial review of agency action in a
contested case: “Upon request of any party the reviewing court shall,
or upon its own motion may, establish a schedule for the conduct of
the proceeding.” In reconciling the provisions of this rule with the
language in section 17A.19(7) which refers to “the date set for
hearing,” we conclude that in the review of contested cases a hearing
must be held for submission of the issues for decision unless an
alternative means of submission on written arguments is established
by the court under rule 333(b). The district court’s failure to provide
for either of these modes of submission in the present case requires
reversal of its judgment.
9

331 N.W.2d at 135 (noting the language in the rule “suggests some type of hearing

will be accorded the parties in reviewing agency action in contested cases”).

Neither Wieslander nor Kernodle dealt with the same “shall” language in play

here.4 Plus “certiorari rules are different from the laws applicable to state

administrative appeals.” Jensen v. City Council of Cambridge, No. 09-0697, 2010

WL 2383778, at *3 (Iowa Ct. App. June 16, 2010) (Mansfield, J., concurring

specially).

Likewise, rule 1.1410 uses both “shall” and “may.” The use of “may” in the

rule has afforded the district court “discretion” to receive evidence at a certiorari

proceeding. Fisher v. Chickasaw Cnty., 553 N.W.2d 331, 334 (Iowa 1996). So

conversely, it would seem use of “shall” in the rule does not allow discretion.

Kopecky v. Iowa Racing & Gaming Comm’n, 891 N.W.2d 439, 444 (Iowa 2017)

(noting that when the words “may” and “shall” are in close proximity in a statute,

“the intent of the legislature could not have been for ‘may’ to mean the same thing

4Iowa Code section 17A.19(7) provides in part:
In proceedings for judicial review of agency action a court may hear
and consider such evidence as it deems appropriate. In proceedings
for judicial review of agency action in a contested case, however, a
court shall not itself hear any further evidence with respect to those
issues of fact whose determination was entrusted by the Constitution
or a statute to the agency in that contested case proceeding. Before
the date set for hearing a petition for judicial review of agency action
in a contested case, application may be made to the court for leave
to present evidence in addition to that found in the record of the case.
If it is shown to the satisfaction of the court that the additional
evidence is material and that there were good reasons for failure to
present it in the contested case proceeding before the agency, the
court may order that the additional evidence be taken before the
agency upon conditions determined by the court.
(Emphasis added.)
10

as ‘shall’”). Court rules are subject to rules of statutory construction. See Comm.

on Pro. Ethics v. Shaffer, 230 N.W.2d 1, 2 (Iowa 1975).

Returning to the mandatory/directory dilemma, Cargill and the City also urge

the provisions of rule 1.1410 are directory, not mandatory, and unless the

Landowners show prejudice, they are not now entitled to a hearing. See Taylor v.

Dep’t of Transp., 260 N.W.2d 521, 523 (Iowa 1977) (providing that directory

provisions fix “the time, form and mode of proceeding of public functionaries . . .

because they are not of the essence of the thing to be done but are designed to

secure system, uniformity, and dispatch in public business. Such statutes direct

the thing to be done at a particular time but do not prohibit it from being done later

when the rights of interested persons are not injuriously affected by the delay”).

The difference between mandatory and directory statutes is in the consequences

of failing to perform the duty which is imposed. Id. at 522–23 (holding that while

Taylor received of a hearing outside of the statutory timeframe, the delay would

not invalidate subsequent proceedings unless prejudice was shown because the

statute about the timing of the hearing was directory). “The failure to perform a

mandatory duty will invalidate subsequent proceedings, while the failure to perform

a directory duty will not invalidate the subsequent proceedings unless prejudice is

shown.” $99 Down Payment, Inc. v. Garard, 592 N.W.2d 691, 694 (Iowa 1999)

(remanding the case after the court violated its duty and proceeded sua sponte to

deny the arbitration award in contradiction to the statutory language mandating

that the district court “shall confirm” the arbitration award).

Thus, the core inquiry of the mandatory/directory analysis is if the failure to

exercise the duty “destroy[s] a right or sacrifice[s] a benefit to the public or
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individual.” Willett v. Cerro Gordo Cnty. Zoning Bd., 490 N.W.2d 556, 560 (Iowa

1992) (finding the “must” requirement to obtain governmental permits before

submitting the special use application was directory as no prejudice occurred

because property owner was required to submit the permits prior to commencing

the operation); see also Wisdom v. Bd. of Supervisors, 19 N.W.2d 602, 607–08

(1945) (finding that when “shall” appears and “is not addressed to public officials

and no right is destroyed by giving it a directory meaning, it will be so construed”).

And we have considered a sentencing court to be in the category of a public official

when applying “the uniform rule . . . that the word ‘shall,’ when addressed to public

officials, is mandatory and excludes the idea of discretion.” State v. Klawonn, 609

N.W.2d 515, 522 (Iowa 2000) (citation omitted) (finding the word “shall” in Iowa

Code section 910.3B created a duty on the sentencing court to impose restitution).

Yet, in agency cases defining the scope of the duty, the focus is whether

the failure to perform the required duty is essential to the process. See, e.g., Tyler

v. Iowa Dep’t of Transp., 420 N.W.2d 442, 443 (Iowa 1988) (finding requirement in

section 321J.9 that an officer provide a “sworn report” a driver had refused to

submit to testing was directory because the affirmation of the report before a notary

was not essential to the purpose of the statute); Downing v. Iowa Dep’t of Transp.,

415 N.W.2d 625, 628 (Iowa 1987) (holding section 321B.13, providing an officer

“shall” issue a temporary license, was directory because the duty was not essential

to the main purpose of the statute, which was to promote public safety); McFee v.

Iowa Dep’t of Transp., 400 N.W.2d 578, 581 (Iowa 1987) (holding a delay in

administrative proceedings without showing of actual prejudice will not mandate

reversal of final agency action); Pietig v. Iowa Dep’t of Transp., 385 N.W.2d 251,
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253 (Iowa 1986) (requirement to “forthwith” revoke license under section 321.209

is directory only, so licensee could not avoid revocation absent showing of

prejudice); Taylor, 260 N.W.2d at 523 (finding that because the legislative goal

could still be attained when hearings are late, the hearing time provision is

directory).

But this requirement for a hearing is more like the situation in Didonato v.

Iowa Department of Transportation, 456 N.W.2d 367, 370 (Iowa 1990), where the

court noted the purpose of the statute was to provide an opportunity to consult with

counsel or a family member after an arrest which made the provision that an officer

“shall permit that [detained] person . . . to call” mandatory. Here, the Landowners

lost the right to a hearing on the merits of the writ. It is not that the right to a hearing

is to be done at a particular time and then was set at a later date; here, it is a

complete denial of the right to a hearing.

To better understand, we look for guidance in cases involving rules where

the language “hearing shall be held” is discussed. More recently, estate cases

have faced this question with Iowa Court Rule 7.2(3), which requires a hearing to

request an allowance for extraordinary expenses. In Uhlenhake v. Uhlenhake, a

party sought extraordinary expense allowances. No. 13-1734, 2014 WL 5862043,

at *12 (Iowa Ct. App. Nov. 13, 2014). Iowa Court Rule 7.2(3) states:

When an allowance for extraordinary expenses or services is
sought . . . [t]he request may be made in the final report or by
separate application. It shall be set for hearing upon reasonable
notice, specifying the amounts claimed, unless waivers of notice
identifying the amounts claimed are filed by all interested persons.

(Emphasis added.) The district court failed to set a hearing on the issue and just

approved the expenses. Uhlenhake, 2014 WL 5862043, at *12. On appeal from
13

the order allowing the expenses, the Uhlenhake court remanded for a review of

the application and to require specific findings. Id. (“But because the objectors

asked for and were entitled to a hearing on the application, we reverse the court’s

attorney fee award and remand for a hearing on the application.”). In 2004, the

court of appeals again interpreted this rule in In re Estate of Schuster, No. 03-2067,

2004 WL 2579231, at *3 (Iowa Ct. App. Nov. 15, 2004). There, the party’s

attorneys had not originally requested a hearing to address their fees. Schuster,

2004 WL 2579231, at *3. When they eventually did, the district court said that the

motion raised “no matters not taken into account in the original determination.” Id.

On appeal, the court stated that even though the party had not originally requested

a hearing, they were procedurally entitled to one. Id. (“[W]e cannot say that even

with consents an attorney should be precluded from presenting his evidence to the

court if the court is opposed to granting the fee application.”). The court ultimately

remanded to the district court for an evidentiary hearing. Id.

The process is important. After a writ is issued, a return is made by the

defendant setting forth that party’s position. Iowa R. Civ. P. 1.1408. In a certiorari

proceeding challenging a zoning decision, the return contains certified or sworn

copies of the documents acted upon by the board and “such other facts as may be

pertinent and material to show the grounds of the decision appealed from and shall

be verified.” Iowa Code § 414.17. Then, the rules further provide, “When full return

has been made, the court shall fix a time and place for hearing.” Iowa R. Civ.

P. 1.1410 (emphasis added). The rule allows parties to offer other oral or written

evidence at the time of the hearing, along with transcripts or recordings of the city

proceedings. See also Geisler v. City Council, 769 N.W.2d 162, 169 (Iowa 2009)
14

(noting the court has the ability to take additional evidence at a hearing). Here, the

Landowners specifically requested an oral hearing in their petitions for writs of

certiorari. In their words, “[a]n oral hearing would have been helpful to resolve the

factual and legal issues raised previously in this motion.”

The district court found a hearing unnecessary. But the rule does not make

the duty5 to set a hearing optional. See Riley v. Bd. of Trs. of Policemen’s Pension

Fund, 222 N.W. 403, 405 (1928) (“The procedure upon a trial of a certiorari

proceeding . . . provides that, when full return of the writ has been made, the court

must proceed to hear the parties upon the record, proceedings, and facts as

certified, and such other testimony, oral or written, as either party may introduce.”).

Noting that the current rule language is stronger than in Riley, Landowners assert

they are entitled to “a full and complete hearing before a proper court of record and

according to accepted judicial method of ascertaining facts.” See Residential &

Agric. Advisory Comm., LLC v. Dyersville City Council, No. 13-0015, 2013 WL

5951191, at *6 (Iowa Ct. App. Nov. 6, 2013) (citation omitted).

We are sensitive to the nature of these proceedings and their importance to

the citizens of Iowa. See Baker v. Bd. of Adjustment, 671 N.W.2d 405, 413 (Iowa

2003), as amended on denial of reh’g (Nov. 25, 2003) (“Questions likely to arise in

such cases are of such great importance that the Legislature appears to have had

in mind that the parties should, on the question of the legality of the board’s action,

be entitled to a full and complete hearing before a proper court of record and

5 “[T]he Iowa Rules of Civil Procedure have the force and effect of statute.”
Johnson v. Iowa State Highway Comm’n, 134 N.W.2d 916, 917 (Iowa 1965); see
also Iowa Code § 4.1(30)(a) (“The word ‘shall’ imposes a duty.”), (b) (“The word
‘must’ states a requirement.”).
15

according to accepted judicial method of ascertaining facts.”). Even so, pointing

to the extensive written record submitted, the City and Cargill posit that the

petitioners suffered no prejudice by the failure to have a hearing and, even if a

hearing were held, the result would be the same. While that prophecy may be

true, we find the process must guide the result, not fall to the result guiding the

process. Thus, we remand to the district court for a hearing on the writs as required

under Iowa Rule of Civil Procedure 1.1410.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION.